The transparency of a political system depends not only on the simplicity and comprehensibility of its decision-making processes – which in the case of the European Union are often criticised as complex and oblique – but on the openness and practical accessibility of its deliberations to the citizen. The need for greater openness in the operations of the European Union institutions was a theme that ran through the negotiations that led to the 1992 Maastricht Treaty and the debate surrounding the Maastricht ratification crisis that followed. The treaty deepened common action in a number of important policy fields – notably Economic and Monetary Union (EMU), Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA) – as well as introducing co-decision between the Council of Ministers and the European Parliament in a number of other areas. It was inevitable that treaty change on such a scale should spark, for almost the first time in the history of European integration, a serious debate about the democratic legitimacy and accountability of the Community institutions.
In parallel to agreeing the Maastricht Treaty, the European Council adopted a declaration in December 1991 on the right of public access to information. ‘Transparency of the decision-making process,’ it said, ‘strengthens the democratic nature of the institutions and the public’s confidence in the administration’, and the European Commission was invited to submit proposals. The following June, press allegations about hidden political agendas within the Commission – such as Boris Johnson’s accusation of a ‘Secret Delors plan to rule Europe’ in the Sunday Telegraph – played a part in delivering the Danish ‘no’ vote in that country’s referendum on the Maastricht Treaty. The European Council meeting in Birmingham returned to the theme of transparency, in conjunction with its declaration on subsidiarity, in October 1992.
Even before the Commission published its proposals in a communication entitled Public Access to the Institutions’ Documents (May 1993), it had already taken steps to update its own practices. These changes included more extensive use of Green Papers to promote discussion on possible legislative proposals, earlier publication of its Annual Work Programme (AWP) and better public distribution of key documents. The Commission put forward some general guidelines and hinted strongly that these should also be followed by the other institutions and the member states. It thus laid the foundations for a tripartite Commission-Council-Parliament ‘declaration on democracy, transparency and subsidiarity’ agreed in Luxembourg in October 1993. In this, the three institutions reaffirmed their attachment to the principle of openness and each set out the steps they proposed to take or were already taking in its favour.
In December 1993, the Council and the Commission agreed on a ‘code of conduct concerning public access to Council and Commission documents’, based on the general principle that ‘the public will have the widest possible access’ to such material. General exceptions allowing applications to be refused included the protection of the public interest, the individual right of privacy, commercial and industrial secrecy, and the Union’s financial interests. Most importantly, either Council or Commission could ‘refuse access in order to protect the institution’s interest in the confidentiality of its proceedings’. Applications for access to documents not originating with either institution would be referred to the original authors.
The 1997 Amsterdam Treaty added an explicit treaty provision granting a general right of access for all citizens of the Union and ‘any natural or legal person residing or having its registered office in a Member State’ to Commission, Council and Parliament documents (now Article 15 TFEU). Rules governing the exercise of this right were to be adopted within two years of the Amsterdam Treaty entering into force. Article 1 TEU was also amended to refer to decisions within the Union being taken ‘as openly as possible’, in addition to ‘as closely as possible to the citizen’, as Maastricht had provided. The Lisbon Treaty, which entered into force in December 2009, extended the right of access to ‘documents of the Union institutions, bodies, offices and agencies, whatever their medium’, whilst stating that among the additional organisations now covered, three – the European Court of Justice (ECJ), the European Central Bank (ECB) and the European Investment Bank (EIB) – were subject to this requirement ‘only when exercising their administrative tasks’.
Transparency affects the different institutions in different ways. As far as the European Parliament’s formal business is concerned, either in committee or in plenary session, transparency has traditionally not been a problem, since nearly all meetings have always been open to the public and many are now broadcast live on the internet. Indeed, the Parliament goes to great lengths – not entirely successfully – to interest the electorate in its business. The most significant closed meetings in the Parliament are those of its governing bodies – the Conference of Presidents, Bureau, Quaestors and Conferences of Committee and Delegation Chairs – as well as ‘closed door’ negotiations with the Council in the co-decision procedure, which have recently grown greatly in frequency. Equally, in a carry-over from the informal norms of the past, the way individual Members vote in committee is hardly ever recorded and is registered in plenary only on final votes on legislation (or upon request).
The problem for the European Commission is rather different. As an executive body and one whose task is to ‘promote the general interest of the Union and take appropriate initiatives to that end’ (Article 17 TEU), the Commission has both to guard its independence from vested interests and protect the privileged information which it receives from governments and international bodies, pressure groups, companies and individuals, some of it furnished on a confidential basis. In considering policy options before submitting legislative proposals, in particular, it needs the freedom and space in which to discuss issues internally without the pressure of instant media scrutiny or lobbying. For these reasons, the Commission has difficulty in giving an unequivocal undertaking to divulge all the documents in its possession or to reveal immediately every aspect of its reflection and decision-making.
However, in its ‘European governance’ initiative undertaken under President Romano Prodi, the Commission undertook to consult more widely and more systematically before presenting its proposals, to make documents available more promptly, and to improve its contacts with ‘civil society’. It also committed itself to pursue the simplification of existing and future EU law, as part of a wider Better Law-Making and Better Regulation agenda. A White Paper issued on governance, published in July 2001, stated rather portentously that ‘the linear model of dispensing policies from above must be replaced by a virtuous circle, based on feedback, networks and involvement from policy creation to implementation at all levels … . It is time to recognise that the Union has moved from a diplomatic to a democratic process’.
The Council of Ministers has always been the least transparent of the three institutions involved in the law-making process, and is likely to remain so. The reasons are clear: ministers in the Council are engaged in a complex process designed to reduce national divergences and ideally reach consensus, for the attainment of which willingness to compromise is an absolute pre-condition. Compromise may well entail the surrendering of a position previously taken up, and this is something more easily done in private, especially if it might arouse national parliamentary sensitivities. Once compromise is reached, it can be justified to press and public on the basis of some greater benefit obtained in exchange.
Attempts to open up the proceedings of the Council have been made for many years. The Council, it was pointed out, was the only legislative body in the democratic world to operate entirely in secret. Its rules of procedure were not even published in the Official Journal until July 1979. Information about Council proceedings was available only in the form of (admittedly frequent) leaks or anodyne press releases from the Council secretariat, whilst the answers given in response to questions from Members of the European Parliament (MEPs) were bland or evasive, or both. However, in 1993, as part of the general transparency initiative by the institutions, the member states agreed to accept a distinction between the ‘deliberative’ (or negotiating) function of the Council, which would remain confidential, and the formal ‘legislative’ function, which could be more open. In October 1993, the Council amended its rules of procedure so that its proceedings would be conducted in public ‘whenever the Council acts as legislator’, unless by simple majority it decided otherwise. (This was initially interpreted as meaning simply that the formal adoption of a measure and sometimes a specially ‘staged’, short debate around it would be public). Votes, explanations of vote and formal declarations on legislation would be published (as they could be on other matters if so decided, by simple majority, at the request of a member state). The Dutch and Danish foreign ministers voted against these new procedures on the grounds that they did not go far enough; the Greek foreign minister opposed them because they went too far.
As a corollary of its general requirement for public access to the documents of the institutions, the 1997 Amsterdam Treaty made it clear that ‘when the Council acts in its legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public’ (Article 207(3) EC). In December 1999, the Council agreed to make the provisional agendas of its meetings available to the public, and in July 2002, it decided that public debates should be held at both the initial and final stages of discussion on legislative items, with the agenda of meetings structured to enable such items to be grouped together so far as possible. The Lisbon Treaty recently replaced Article 207(3) with new wording: ‘The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities’ (Article 16(8) TEU).
The key legislative text on transparency in the EU institutions is a regulation on access to documents, proposed by the Commission in January 2000 and adopted by the Council and Parliament in May 2001. (It is generally known by its code number as Regulation 1049/2001). This builds on the 1993 code of conduct and obliges each institution to establish a register of all its existing documents, to which new documents are to added ‘without delay’. A document is defined as ‘any content whatever its medium … concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’. This definition encompasses official documents, including emails, that relate to the formal responsibilities and powers of an institution. A date, reference number and title are given to each such document as it is entered in the register and this information must be accessible to citizens electronically. Some of these documents will already be freely available on the internet, independent of their inclusion on the register, but the register provides a single, comprehensive point of reference and access for anyone seeking all relevant materials (which will normally supplied within 15 days). Each institution adopts its own internal rules about how it fulfils its general obligation under the regulation. In the case of the European Parliament, for example, communications within Members’ offices or political groups are not considered to be official documents, but the communications of either with parliamentary office-holders or the administration would be so considered.
The institutions are allowed to withhold access to documents listed in the registers where their disclosure would undermine the ‘protection of the public interest’ as regards public security, defence and military matters, international relations, or the financial, monetary or economic policy of the Union or a member state. Some Council and Commission documents in these fields are not included in the registers if they qualify as ‘sensitive’. These are marked ‘top secret’, ‘secret’ or ‘confidential’ and must ‘protect essential interests of the European Union or of one or more of its Member States’. (Special arrangements, reached after a struggle between the institutions, allow such documents to be made available to the European Parliament under controlled conditions). Refusal of access is also permitted where disclosure would undermine the privacy or integrity of an individual, the protection of commercial interests, court proceedings and legal advice or the purpose of inspections, investigations and audits. More controversially, access may be refused where disclosure ‘would seriously undermine [an] institution’s decision-making process’. This last condition relates both to internal documents on matters under current discussion and to papers ‘containing opinions for internal use as part of deliberations and preliminary consultations’ in the past. Non-disclosure of some of the above documents may last for up to 30 years.
In 2009, the European Commission added over 18,000 new documents to its register. It received 5,055 formal requests for documents or groups of documents from citizens, 84 per cent of which it was able to accept in full. It agreed to release parts of documents in four per cent of cases and rejected applications in 12 per cent of cases. The reasons for refusal were mainly to ‘protect the Commission’s decision-making process’ (27 per cent), protect the purpose of a Commission investigation (26 per cent) and to protect commercial interests (18 per cent). Decisions on the accessibility to documents are subject to a review procedure. If applicants remain dissatisfied, they may appeal to the European Ombudsman on grounds of maladministration or take a legal case to the General Court of the ECJ, previously known as the Court of First Instance.
Action by the Union institutions to promote transparency through access to documents is not to be confused with measures to regulate the lobbying of the same institutions by outside interests. The Commission’s European Transparency Initiative (ETI), launched in May 2008, involved the establishment of a voluntary register and code of conduct for lobbyists. Subsequent negotiations with the Parliament resulted in both the register and code of conduct being re-established on a joint basis between the two institutions in June 2011.
Further reading: Deirdre M. Curtin, ‘Citizens’ fundamental right of access to EU information’, Common Market Law Review, Volume 37, Number 1, 2000; Martin Bauer, ‘Transparency in the Council’, in Martin Westlake and David Galloway, The Council of the European Union, 2006.
September 2012
Copyright: Anthony Teasdale, 2012
Citation: The Penguin Companion to European Union (2012), additional website entry